The Jurisprudential Turn in Legal Ethics

When legal ethics developed as an academic discipline in the mid-1970s, its theoretical roots were in moral philosophy. The early theorists in legal ethics were moral philosophers by training, and they explored legal ethics as a branch of moral philosophy. From the vantage point of moral philosophy, lawyers’ professional duties comprised a system of moral duties that governed lawyers in their professional lives, a “role-morality” for lawyers that competed with ordinary moral duties. In defining this “role-morality,” the moral philosophers accepted the premise that “good lawyers” are professionally obligated to pursue the interests of their clients all the way to the arguable limits of the law, even when doing so would harm third persons or undermine the public good. More recent scholarship in legal ethics has rejected the moral philosophers’ premise that lawyers’ ethical duties demand instrumentalist partisan interpretation of the “bounds of the law.” In what I call the “jurisprudential turn” in legal ethics, legal scholars are now increasingly looking to jurisprudential and political theory to explore the interpretive stance that it is appropriate for lawyers to take with respect to the “bounds of the law” that limit their partisan advocacy. Just as jurisprudential theories of adjudication ground judges’ duties of legal interpretation in the role of judges in a democratic society, jurisprudential theories of lawyering ground lawyers’ interpretive duties in analysis of the role lawyers play in a democratic system of government. This Article critically examines the emerging uses of jurisprudential theory in legal ethics. It argues that jurisprudential theory presents an attractive alternative to moral theory in legal ethics because it provides a rubric for limiting lawyers’ no-holds-barred partisan manipulation of law that springs directly from the lawyer’s professional duties rather than competing with them. It critiques the two major schools of thought in the “jurisprudence of lawyering” based on Dworkian and positivist jurisprudence. And it questions the common framework within each jurisprudential school, which assigns lawyers a role as case-by-case lawmakers, suggesting that this framework imposes an inappropriately lawyer-centered focus on assessments of the legitimacy of law that more properly belong to clients

Legal Fiction

While numerous ancient human DNA datasets from across Europe have been published till date, modern-day Poland in particular, remains uninvestigated. Besides application in the reconstruction of continent-wide human history, data from this region would also contribute towards our understanding of the history of the Slavs, whose origin is hypothesized to be in East or Central Europe. Here, we present the first population-scale ancient human DNA study from the region of modern-day Poland by establishing mitochondrial DNA profiles for 23 samples dated to 200 BC - 500 AD (Roman Iron Age) and for 20 samples dated to 1000-1400 AD (Medieval Age). Our results show that mitochondrial DNA sequences from both periods belong to haplogroups that are characteristic of contemporary West Eurasia. Haplotype sharing analysis indicates that majority of the ancient haplotypes are widespread in some modern Europeans, including Poles. Notably, the Roman Iron Age samples share more rare haplotypes with Central and Northeast Europeans, whereas the Medieval Age samples share more rare haplotypes with East-Central and South-East Europeans, primarily Slavic populations. Our data demonstrates genetic continuity of certain matrilineages (H5a1 and N1a1a2) in the area of present-day Poland from at least the Roman Iron Age until present. As such, the maternal gene pool of present-day Poles, Czechs and Slovaks, categorized as Western Slavs, is likely to have descended from inhabitants of East-Central Europe during the Roman Iron Age

Misplaced Fidelity

This paper is a review essay of W. Bradley Wendel\u27s Lawyers and Fidelity to Law, part of a symposium on Wendel\u27s book. Parts I and II aim to situate Wendel\u27s book within the literature on philosophical or theoretical legal ethics. I focus on two points: Wendel\u27s argument that legal ethics should be examined through the lens of political theory rather than moral philosophy, and his emphasis on the role law plays in setting terms of social coexistence in the midst of moral pluralism. Both of these themes lead him to reject viewing legal ethics as an instance of the problem of role morality. In part III I note the similarity between Wendel\u27s view and that of legal process theorists, and I argue that the view involves too much complacency about the American legal system. Part IV examines the central metaphor of Wendel\u27s book, fidelity to law. I distinguish between two forms of fidelity, personal and interpretive. The former is a relation between persons, while the latter means mimetic accuracy in interpretation, translation, performance of music, portraiture, or other forms of representation. I agree with Wendel\u27s views on the requirement that lawyers exhibit interpretive fidelity toward law, but not personal fidelity. I argue that law is not the kind of thing toward which one can have personal fidelity; rather, the fidelity must be toward other members of the community rather than toward norms as such; and in cases where the law systematically discriminates, or is otherwise systematically unjust, the bonds of reciprocity grounding such a relation are absent, and the kind of unconditional obedience to law that Wendel supports is unjustified. Part V asks where, on Wendel’s view, the morality went. I argue that Wendel\u27s view, which derives from but modifies Joseph Raz\u27s analysis of legal authority as exclusionary reasons, does not succeed—either it begs the question of whether law actually provides exclusionary reasons or, if (as Wendel suggests) the reasons are not wholly exclusionary, Raz’s two levels of reasoning collapse into one, and acting on moral grounds is not in fact excluded by legal authority. I then turn to Wendel\u27s ideas about moral remainders —the moral costs that acting on his view of legal ethics may inflict on others. Wendel suggests that some form of atonement can cancel the moral remainder, but I am skeptical that his proposal—atoning through law reform activities—can do the job

Straying from the Path of the Law after One Hundred Years, The

What common ground can be found between modern feminist legal theory and a century-old essay advocating understanding the law from the perspective of the bad man ? The question admits of no simple answer. Feminists, including myself, might agree with some irony that [i]f you want to know the law and nothing else, you must look at it as a bad man but would add that this is precisely the problem. Of course, Holmes does not use the concept of the bad man in a feminist sense to suggest that the law empowers the bad man at the expense of women. Indeed, except for a passing reference to Mrs. Quickly\u27s misplaced interest in headwear, he does not mention women at all. Nonetheless this essay reveals common ground between Holmes\u27s thought and feminist legal theory that is both wide and significant. Feminism\u27s departures from The Path - and there are many - reveal just as readily our different destination